Tanksley v. The People Of The State Of California et al

Filing 16

ORDER DISMISSING Action For Failure To State A Claim Upon Which Relief May Be Granted Under 42 U.S.C. 1983 (Doc. 14 ), Dismissal Counts As Strike Pursuant To 28 U.S.C. 1915(G), signed by Magistrate Judge Dennis L. Beck on 4/6/2010. CASE CLOSED. (Scrivner, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MOODY WOODROW TANKSLEY, 10 11 v. Plaintiff, CASE NO. 1:09-cv-00643-DLB PC ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER 42 U.S.C. § 1983 (Doc. 14) DISMISSAL COUNTS AS STRIKE PURSUANT TO 28 U.S.C. § 1915(G) / 15 16 17 I. 18 Background Plaintiff Moody Woodrow Tanksley ("Plaintiff") is a state prisoner proceeding pro se and Order

UNITED STATES DISTRICT COURT

12 THE PEOPLE OF THE STATE OF CALIFORNIA, et al., 13 Defendants. 14

19 in forma pauperis pursuant to 42 U.S.C. § 1983. On April 10, 2009, Plaintiff filed the complaint 20 which initiated this action. (Doc. 1.) On August 21, 2009, the Court dismissed Plaintiff's 21 complaint with leave to file an amended complaint within 30 days. (Doc. 13.) On September 23, 22 2009, Plaintiff filed his first amended complaint. 23 The Court is required to screen complaints brought by prisoners seeking relief against a

24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 27 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 28 § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 1

1 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 2 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 3 1915(e)(2)(B)(ii). 4 A complaint must contain "a short and plain statement of the claim showing that the

5 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient 9 factual matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S. Ct. 10 at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, 11 legal conclusions are not. Id. at 1949. 12 II. 13 Summary of Allegations Plaintiff is currently housed at Atascadero State Hospital. Plaintiff's amended complaint,

14 much like his original complaint, is difficult to understand and his allegations difficult to 15 decipher. Plaintiff names the Honorable Richard J. Oberholzer and District Attorney Kenneth 16 Green as defendants. Plaintiff does not explain why he is suing Judge Oberholzer or Kenneth 17 Green. Plaintiff is alleging that defendants violated the Health Insurance Portability and 18 Accountability Act by their actions, as well as "penality code 1385." Plaintiff requests that the 19 Court obtain court documents from the California Fifth District Court of Appeal. Plaintiff seeks 20 money damages. 21 First, as stated in the Court's previous order, the Health Insurance Portability and

22 Accountability Act itself provides no private right of action. Webb v. Smart Document Solutions 23 L.L.C, 499 F.3d 1078 (9th Cir. 2007). Plaintiff's claim fails as a matter of law 24 Second, state court judges and prosecutors are immune from liability under 42 U.S.C. §

25 1983. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) ("Absolute 26 immunity is generally accorded to judges and prosecutors functioning in their official 27 capacities"); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (holding that judges and 28 prosecutors are immune from liability for damages under section 1983 ). Based on his 2

1 allegations, Plaintiff may not proceed in this action against either defendant Oberholzer or 2 defendant Green. 3 Third, Plaintiff cites to a penal code 1385. The corresponding section in the California

4 Penal Code pertains to criminal procedure for dismissing actions. Cal. Penal Code § 1385. This 5 is not a cause of action. 6 Plaintiff was provided with the opportunity to file an amended complaint curing the

7 deficiencies in his original complaint. Plaintiff has failed to do so, and fails to state any 8 cognizable federal claims. Accordingly, further leave to amend will not be granted. Lopez v. 9 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 10 III. 11 Conclusion and Order Plaintiff fails to state any cognizable claims in his amended complaint. Plaintiff was

12 provided leave to amend to cure the deficiencies identified in his original complaint, but failed to 13 do so. Plaintiff will not be granted further leave to amend. 14 Accordingly, it is HEREBY ORDERED that this action is DISMISSED with prejudice

15 for failure to state any claims upon which relief may be granted under 42 U.S.C. § 1983. The 16 dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). 17 18 3b142a 19 20 21 22 23 24 25 26 27 28 3 IT IS SO ORDERED. Dated:

April 6, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE